Hausauer v. Machawicz

Spring, J.: Costs are entirely a creature of the statute and their imposition must,-therefore, rest upon some specific statutory warrant. ' (Equitable Life Assurance Society v. Hughes, 125 N. Y. 106, 108.) Section 3228, subdivision 2, of the Code of Civil Procedure provides for the allowance of costs of course to the plaintiff in a final-jndg- ■ ment for the recovery of a chattel. It makes the adjustment of the costs depend upon the value of the chattel and the damages awarded as fixed at the trial. If such value with the damages is less than fifty dollars then the costs cannot exceed the amount thereof. This constitutes the only authority for the allowance of costs in an action to recover a chattel, and in construing that subdivision the courts with considerable uniformity have held that the fixing of the value of the property or of the damages is essential before a plaintiff is ■ entitled to any costs. (Herman v. Girvin, 8 App. Div. 419; Lockwood v. Waldorf, 91 Hun, 281; Wolff v. Moses, 6 N. Y. Ann. Cas. [25] [Benj.] 163; Rapid Safety Filter Co. v. Wyckoff, 20 Misc. Rep. 429.) If upon the trial the plaintiff establishes his right to recover the property a judgment may be entered accordingly. Under the offer in this case the plaintiffs upon the entry of their judgment were entitled to the return of the property; but to nothing in lieu of the chattel if that could not be obtained. As was said in Hammond v. Morgan (101 N. Y. 179, at p. 186): “A judgment in replevin may undoubtedly be entered, although the jury has non assessed any damages or found the value of the property. _ In that case the judgment would simply award the property to the plaintiff, to be enforced by execution, and if the return of the property could not be thus obtained, the judgment would be unavailing.” The defendant fixed no value to the property in the offer, and by limiting the damages to its detention she restricted the costs to that sum as that was the only money judgment which could be awarded. The offer of the defendant would have been of little avail to her had the action proceeded. If the value fixed upon the trial with the damages had been below fifty dollars, costs equal to the amount of the recovery would have been allowed. If in excess of that sum, full costs would follow; that is, the offer would have been of no significance in the determination of the costs. The plaintiffs by their acceptance are entitled to the return of the property with the prescribed damages; but they must also accept. that relief with the limitation as to costs which are only allowable uj>on fixed values or damages. The offer to allow judgment with costs must be taken to have been made with the expectation that only the costs which follow the money judgment of two dollars could be imposed. While the offer was probably insufficient and would have been no aid to the defendant, yet, when accepted by the plaintiffs, it became operative to authorize the judgment, but the costs to be imposed must come within the strict terms of the offer as made. All concurred. Order reversed, with ten dollars costs and disbursements of this appeal, and the retaxation pursuant to said order is set aside and the original retaxation of costs at two dollars is affirmed.